Macramalla: Judge made error during conviction of Pistorius

Eric Macramalla, TSN Legal Analyst
9/13/2014 6:09:59 PM
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Judge Masipa returned to Court on Friday and convicted Oscar Pistorius on the charge of culpable homicide. The conviction seemed all but a certainty on Thursday, when she declared Pistorius was negligent before adjourning for the day.

"Pistorius had time to think and consider his actions. I'm satisfied his actions weren't that of a reasonable person," the judge said. "He acted too hastily and used excessive force. His conduct was negligent."

When considering culpable homicide, the question to ask is whether a reasonable person would have acted as the accused did.

In convicting Pistorius, Judge Masipa concluded that he did not act reasonably and that a reasonable person would have called for help rather than charge down the hall and fire four shots through a locked bathroom door at 3am.

Prison Time and Sentencing

The legislation does not provide for specific prison time for culpable homicide. Rather, the sentencing is discretionary, although it's not unusual to see prison time in South Africa of 5 to 15 years for this type of crime.

The next step is a sentencing hearing to be held on October 13. At the hearing, each side will present their arguments as to appropriate jail time. The prosecution, led by Gerrie Nel, will seek to convince the Judge that Pistorius should spend 15 years in jail, while Pistorius' lawyer, Barry Roux, will argue that no jail time is warranted. While some are of the view that Pistorius could completely avoid jail, that seems unlikely. Expect a minimum of 5 years and probably closer to 10 years. However, this trial has been filled with surprises, so another one would not be completely unexpected.

No Conviction on Murder: A Grave Error Is Made

Speaking of surprises, Judge Masipa found Pistorius not guilty of murder. In order to make out this charge, the prosecution had to establish that Pistorius intended to kill someone – Steenkamp or the intruder. That's right – it's still murder if it could be shown that Pistorius intended to kill anyone that night.

Perhaps it could be argued that the requisite intent to kill Steenkamp was not established. It's a tough argument to make given the totality of the evidence but still an argument that could made with a certain level of credibility. The reasoning would go something like this: Pistorius did not know it was Steenkamp in the bathroom so he therefore could not form the necessary intent to kill her.

However, on the point of killing 'anyone', the Judge committed an error of law when she concluded that Pistorius did not commit murder. Specifically, Pistorius should have been found guilty of murder because it's still murder in South Africa if he intended to kill anyone. This legal concept of intent, which holds people responsible for the foreseeable consequences of their actions, is called dolus eventualis.

By his own account, after he heard the intruder, Pistorius grabbed his gun, removed the safety, charged down the narrow hallway to the bathroom, and without any words of warning, fired four shots through a locked door into a very small toilet cubicle. Every decision from grabbing the gun to firing the shots with deadly hollow point black tallon bullets was conscious and intentional. He did not fire just once clumsily or accidentally, or yell out to the intruder. He deliberately and intentionally fired four shots in quick succession with great precision through the toilet door.

The evidence strongly supports the conclusion that Pistorius believed that there was a person behind the door, foresaw that his gunshots would kill that person and nevertheless persisted. Indeed, he fired because he believed there was someone behind the door.

That's murder.

How did Judge Masipa come to a different conclusion? Well it seems that she concluded Pistorius did not intend to kill anyone because Steenkamp was asleep in his bed. There's an obvious disconnect in that logic, and it seems as though Judge Masipa was focused exclusively on whether Pistorius believed Steenkamp was still in his bed.

This constitutes a misapplication of the law, which opens the door for an appeal by the prosecution. Indeed, it would not be a surprise to see Judge Masipa's decision appealed.

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